The freedom of information, expression, organization and the right to privacy and safety are fundamental human rights, and these rights also belong to children. Today children of various ages have access to smartphones, search the Internet and communicate on social media – they are involved with the technology to the same extend adults are. Privacy is a difficult common law concept in both England and Scotland which, in modern times, has been embodied by common law with important developments over the last decade.
European Convention of Human Rights is of particular importance in the cases regarding to children’s reasonable expectation of privacy in the United Kingdom. Article 8 of the Convention guarantees right to respect for private and family life, which is key provision in cases related to privacy.
The exception to Art 8 rights is if in accordance with the law and it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words – this personal right can only be sacrificed for the “greater good”.
The Art 8 rights often clash with Article 10 right to freedom of expression. It is due to this clash that the concept of reasonable expectation to privacy has been established in Campbell. Recent cases involving privacy of children of famous people have developed the rules with the regards to the expectations.
The landmark decision regarding children’s right to privacy was made in Murray v Express Newspapers Plc and it was initially heard in the High Court. This was an action brought by J.K Rowling and her husband on behalf of their young son for invasion of his privacy following photographs which were taken and published of him as he was pushed down a street in his buggy by his parents. Their case was struck out in the High Court but the Court of Appeal granted their appeal. It was held that a child has a right to privacy which is separate from that of each of its parents but which can be affected by the extent to which the parents choose to have their child in the public eye. The right to privacy is decided by the test of legitimate or reasonable expectation and then by applying a balancing exercise on whether rights under Articles 8 and 10 of the European Convention of Human Rights have been infringed. Another important change brought to us by Murray is reducing the threshold of triviality of the actions being published by the press. In Campbell, Lady Hale stated that the famous model would not have a reasonable expectation of privacy if she were to pop to the shop to get some milk and Elton John would not have a reasonable expectation of privacy when photographed outside of his house wearing unflattering clothing. Murray held that routine acts, such as taking the bus or a going to a shop can still attract expectation of privacy depending on particular circumstances and this approach was later adopted in Weller as well.
In 2014 the Court of Appeal held that misuse of private information constituted a tort
The tort in question protects ‘the right to control the dissemination of information about one’s private life’. – Campbell v Mng
In 1990, the United Nations signed and ratified the Convention on the Rights of the Child, including Article 17, which recognized “the important function of the mass media”.
Another landmark decision regarding children’s right to privacy was made in Weller and Ors v Associated Newspapers Ltd only two years ago. In this case children of a famous musician Paul Weller were photographed along with their father whilst they were sitting in a café in Los Angeles. The father asked the photographer to stop taking pictures of his family and the latter assured him that, if published, the faces of the children would be pixelated. The article with the photos was published several days later showing the faces of the children, a girl aged 16 and 10 month old twin boys. The article also confused the daughter for the musician’s wife. Mr Weller acting as a litigation friend of the children brought proceedings for damages for misuse of private information, breach of the Data Protection Act 1998 and an injunction.
The two-fold test from Campbell was applied in this case. The first stage is to establish whether the complainant has a “reasonable expectation to privacy”. The second stage is to apply a balancing exercise between individual’s right to privacy under Art 8 and the publisher’s right to the freedom of speech under Art 10 of the ECHR.
Lord Dyson, MR made several points with regards to the reasonable expectation of privacy extended by children. He held that although a child does not have a separate right to privacy merely by the virtue of being a child, the facts in each individual case shall allow to establish whether there was such expectation. Dyson, MR pointed out that where a child is too young to have an idea of privacy, the behaviour of the parents and how they chose to conduct their family life shall step in as a factor and the parents’ lack of consent will carry particular weight when dealing with children privacy rights cases. He further stated that effect on a child cannot be limited to whether the child was physically aware of the photos being taken or whether the child was personally affected by the action. Most importantly, the child’s best interest is of primacy when determining whether Art 8 rights are engaged.
What can be observed from both, Murray and Weller cases, is that both sets of parents have taken active steps to keep their children out of the limelight and this particular fact had a very heavy weight in both decisions. On the first instance in Murray case Patten J stated that ‘The court can attribute to the child’s reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing’. Therefore, if the parents of the child choose to engage the child of any age in public activity that will fall within general interest of the society, such expectation of privacy shall be waived and the above cases would be decided differently. This shows that under English law a parent is an intermediate between the child and his privacy which in essence is a rather unsettling because once the latter reaches adulthood the actions of the parent may affect all aspects of of life of that person. In her article Holly Hancock argued that “Potentially the greatest threat to a child’s privacy can come from their own parents, able to sacrifice the rights of their children”. In the context of media law, “best interest of the child” is often interrelated with “reasonable expectation of privacy”, however, the two might be distinguished which could affect the judgement depending on the wording of the claim.
In AAA case the claimant, a young child, had photos of her taken while being pushed in a buggy, which were later published alongside an article speculating that she was an illegitimate child of the Mayor of London. Justice Nicola Davies awarded the claimant £15k in damages for the photograph being published. However, she found that the claimant had a reduced expectation of privacy because of her mother’s hints to her daughter’s alleged paternity at a party and during a magazine interview, as well as the public interest in publishing the information linked to the alleged father. Davies J therefore found that the publication was indeed justified and was not in breach of the claimant’s Art 8 rights. The Court of Appeal agreed with these findings and furthermore considered that “reasonable expectation of privacy” and “best interest” were essentially the same thing, and subsequently both were reduced by virtue of the mother’s behaviour.
In ZH (Tanzania) case the “best interests of the child” was broadly considered to mean the well-being of the child. An important part of discovering the best interests of the child is to discover the child’s own views. Lord Kerr added that whence decisions are being reached that will affect the child, a primacy of importance must be accorded to his or her best interest and that it is “a factor that must rank higher than any other […] unless countervailing reasons of considerable force displace them. In AAA, on the other hand, it was held that the case was not conducted as a “best interests of the child case” and very little evidence had been adduced as to whether keeping the information regarding to the claimant’s paternity private was in fact in her best interests. It appears it may be potentially advisable for the child claimants to make their claim based on the “best interest” rather than reasonable expectation to privacy as this could result in a decision favourable to the child. Although there is an undeniable public interest in an extra marital relationship and an illegitimate child allegedly fathered the Mayor, there is a strong possibility that the news story outing the father with images of the child will have an effect on the latter for years to come – such effect being capable of breaching that person’s right to privacy once she becomes an adult.
To Legislate or not to Legislate?
In Wainwright, the House of Lords held that no common law tort of invasion of privacy exists and creation of such tort would require a detailed approach to be achieved by legislation, rather than the broad brush common law principles. Furthermore, it was said that adoption of such tort in not necessary to comply with the Art 8.
Protection Offered by International Law
United Nations Convention on the Rights of the Child (UNCRC) (signed and ratified by the UK in 1991) underpins all our work. Article 12 of the UNCRC states all children have the right to a voice, which is both heard and taken seriously, in all decisions about them and their lives. Article 16 is crystal clear: all children have an inalienable, undeniable right to have their privacy protected, unless there are things happening in their lives that place them in danger. If we take this international treaty seriously, and if children tell us they do not want their private lives made public, we have a clear mandate: to ensure their dignity is guaranteed by not exposing their private troubles to the public gaze.
Finding the Balance
ECHR has held that Articles 8 and 10 are of equal value and that the margin of appreciation should be the same in both cases. In applying the balancing exercise between Art 8 and Art 10, the UK courts have adopted the five criteria set out by the ECHR in Von Hannover (No.2):
1. Does the publication make a contribution to a debate of general interest?
2. How well known is the person concerned?
a. ECHR drew a fundamental distinction between between “reporting facts capable of contributing to debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions.”
3. The prior conduct of the person concerned.
4. The content, form and consequences of the publication.
a. May include scope of dissemination, the size of the publication, readership etc.
5. The circumstances in which the photographs were taken.
a. Factors such as consent, knowledge of actions, nature of seriousness of the intrusion
In this case, the ECtHR upheld its previous decisions linking the content of articles to the content of accompanying texts, and allowing a broad definition of “public interest” where accompanying texts concern public officials. However, the decision narrowed allowable publications of photographs by requiring that the texts linked to articles concern the events or individuals appearing in the photographs.
Although in the second-stage balancing exercise the engagement of a child’s Article 8 rights does not automatically trump any Article 10 rights, where a child’s interests would be adversely affected, they must be given ‘considerable weight’.
There is a dichotomy between those children who are famous
In this day and age social medial allows to share and spread information and images instantly and globally, so what remains unclear is the breach of expectation of privacy of the child by a regular individual, not a journalist or a newspaper. Such private person’s photographic publication on social media might pick up a similar number of viewership and “clicks” as a newspaper article – so should the legal restrictions only apply to media outlets or to civilians as well? Such photographs posted on social media may result in causing potential future damage to those portrayed and may be against the notion of the best interest as similar results of embarrassment to the child and bullying might be achieved. This particular issue applies to ordinary children too – with kids being photographed on the daily basis and
The quickly developing and nonetheless confusing area of